An article in the Wall Street Journal last week having pointed out that 97 percent of U.S. criminal prosecutions are now guilty-plea bargains, and that 85 percent of the remaining 3 percent are trials that return guilty verdicts, I return to the spavined bête noire of the justice system. These are totalitarian percentages. I have referred here before to an American “prosecutocracy.”
The United States has 5 percent of the world’s population, 25 percent of its incarcerated people, and almost 50 percent of the world’s lawyers. These figures hold, even if it is accepted that some undemocratic countries, probably including China, do not reveal the full numbers of detained people, and provided we exclude the countries where the practice of law is not a learned profession requiring serious academic formation. India professes to have almost as many lawyers as the U.S. — which has over 1 million accredited lawyers, who have graduated from law schools and passed bar exams — but that includes a very large proportion of them who appear in courts of common pleas where anyone can saunter in and argue a case.
The Fifth, Sixth, and Eighth Amendments guarantee a grand jury (implicitly, though this is not expressly stated, to ensure against capricious prosecutions), just compensation for seized property, due process, access to counsel (of choice), prompt justice, an impartial jury, and reasonable bail. All of these guarantees have been sliced and pulverized to varying levels of granularity in the 50 states. Grand juries are rubber stamps that almost never withhold what is asked by prosecutors, and their proceedings are often unknown to suspects and targets as they occur. The seizure of property, especially if that property is being relied on as a source for paying the legal bills of notoriously rapacious American lawyers, frequently occurs just before the prosecutors lay their charges, freezing the civil proceedings and rendering the defendant’s property unavailable as a source of sales or borrowing to pay for counsel, who almost always demand hefty retainers at the outset. The process — from identification of a target to the end of a trial — can often be several years, during which it is practically impossible for an accused person to function normally.
Juries are subjected to an intense propaganda blast from prosecutors in the areas where the case will be heard and the jurors selected, almost invariably echoed by the media, descending even to the likes of Nancy Grace, who routinely demands to know why uncharged possible suspects, whom she names, are “still at large.” Impartial juries in such circumstances, which obtain in all high-profile cases, are hard to come by. Bail is not just a surety against flight but a tool of impoverishment against defendants, and is frequently far from reasonable. (I posted $38 million when I was a criminal defendant several years ago. It was a stretch but I managed it, despite an illegal asset seizure, but few people have the resources to defend themselves and even face the daunting odds against them in the courtroom.)
Those who cannot face the costs but wish to fight, or even wish to plead, are thrust into the hands of the public defenders, who are court employees, paid not for performance but by the number of “clients” they serve. They are effectively subordinate to the prosecutors, who may agree on recommended sentences for those who plead guilty and then depart from their agreements after the plea is in, with no sanction from the judge. Even the criminal-defense bar, for the most part, are chums of prosecutors, with whom they (almost always unsuccessfully) contend every week, who scarcely know their clients, and are well-paid cogs in a well-programmed machine that is essentially a conveyor belt to prison rather than a process of fair adjudication of thoughtfully leveled charges. At the end of our four-month trial, one of my co-defendants’ counsel, when asked by my wife if the proceedings were “justice,” cheerfully responded that “No, it’s theater; fun for everyone but the defendants.” (We won 95 percent of the case, and eventually all of it when the Supreme Court unanimously found the chief prosecuting statute unconstitutional, but two counts were spuriously retrieved when the high court remanded the vacated counts back to the appellate panel it had excoriated for assessment of the gravity of its own errors. I spent three years in federal prisons, falsely convicted of crimes of which no court in any other serious country would have convicted me.)
Prosecutors routinely withhold exculpatory evidence, as they did in the infamous case that ended the career of six-term Alaska senator Ted Stevens (enabling the Obama health-care reform to pass). There is normally no sanction for this; in the unspeakable John Thompson case, in which prosecutors wilfully withheld blood evidence that exonerated a murder convict, the Supreme Court ultimately determined that there should be no official sanction against that conduct, overruled an appeals-court award of $14 million to the falsely accused, and found that if there was cause for discipline of the prosecutors, it could be meted out by the bar: possible disbarment or lesser disciplinary action, as a consolation to an innocent man who had spent 14 years in an isolation cell on death row.
Prosecutors, in effect, have a free hand to charge and convict whom they wish. Corroborative evidence is sought from apparently knowledgeable parties, who are threatened with conspiracy in the alleged offense if they do not jog their memories and produce inculpatory testimony that is then rehearsed as in a catechism class until it is ready to be trotted out in the court, with an absolute immunity for perjury for the witness, and a practical immunity for the prosecutor for the extortion or subornation of perjury. Sentences for those who fight rather than plead are much heavier, a daunting penalty for exercising the constitutional right to a trial.
All but the best federal prisons (fortunately, those to which I was sent were in that category) are terribly overcrowded and corruptly managed, and do nothing to rehabilitate those who might be susceptible to such treatment.
Also, the sentences are absurdly over-long: Demagogy on both the right and the left has been relentless on this issue for more than 40 years, since the prison riots of Attica and San Quentin caused convicts to be identified with black extremism, and the feminists propagated the notion that male America was soft on rape. The political class and the media, screaming for longer and more brutal sentencing, have managed to steamroll all opposition. Even leaving out the 15 percent or so of accused who are completely innocent, and the 50 percent or more of the rest who would not be convicted (or not so effortlessly) if real due process obtained, the sentences are extreme; and sentencing has been wrenched from the hands of judges and usurped by legislators strutting about the ramparts of law and order boasting of sending away to these black holes for 15 or 20 years teenagers who drive trucks with marijuana in them, and men who download pornography that they do not create, buy, or distribute.
The war on drugs has cost over a trillion dollars and resulted in the imprisonment of 2 million people, and yet drugs are more plentifully available, in better quality, at cheaper prices, than they were when the war began. Prohibition was a masterstroke of public policy in comparison. The U.S. has six to twelve times as many incarcerated people as other developed countries, such as Australia, Canada, France, Germany, Japan, and the United Kingdom. In Canada, only 65 percent of prosecutions are successful, plea bargains are rare, and a third of those convicted do not receive custodial sentences.
Winston Churchill regarded the use of imprisonment as “the test of civilization”; the United States has flunked the test. There are now 48 million Americans with a “record,” and at least 750,000 more each year. Many, certainly, are for unstigmatizing events, such as DUI or disorderly conduct at a fraternity party many years ago, but because of the U.S. government’s passion for extra-territoriality, even those so charged are, at American official request, barred entry to friendly countries such as Canada (which admitted scores of thousands of fugitive slaves and draft-evaders and deserters). It is all part of the larger problem of too many lawyers and too many laws and regulations, as the legislating lawyers at all the sources of lawmaking and regulation in the country spew out more restrictions and penalties as furiously as the national debt rises. On the civil side, the Bank of America has set aside $42 billion in two years to deal with lawsuits arising from bad acquisitions. The law consumes approximately 10 percent of GDP, $1.5 trillion annually.
And all that is part of the still larger problem of over-reliance on service industries, which are now around 60 percent of the economy but provide a small fraction of the value added that is the source of increased wealth and productivity. The least likely but most sensible socioeconomic proposal that could be made in this election year, and that would be no more coercive than much of the U.S. legal system already is, would be to require 250,000 lawyers to don blue overalls, man up to their metal lunch boxes, and go out and add value, in the agricultural or oil fields, mines, or factories of America. Some of this may happen eventually, but from economic necessity, not spontaneous enlightenment and political courage. By “a society of laws,” the Founders did not mean strangulating regulation, kangaroo courts, and an oppressive legal cartel; American justice is indeed blind, but not in the manner intended.